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[2012] ZAECELLC 3
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White v Minister of Safety & Security and Others (EL 322/2003, ECD 720/2003) [2012] ZAECELLC 3 (2 March 2012)
1
IN THE HIGH COURT OF SOUTH AFRICA,
(East London Circuit Local Division)
Case no: EL 322/2003
ECD 720/2003
In the matter between:
Marilyn Elizabeth White
…..............................................................
Applicant
and
The Minister of Safety & Security
…..................................
First
Respondent
Inspector Nokhwali
….......................................................
Second
Respondent
Inspector Qamra
…............................................................
Third
Respondent
Inspector Ndzalo
…...........................................................
Fourth
Respondent
JUDGMENT
D. VAN ZYL J:
This is an interlocutory application wherein the
applicant seeks an order directing the first respondent (
“
the
respondent”
) to give due consideration to an
offer of settlement
made by the respondent’s
legal representatives to the applicant, and to advise the applicant
of his decision.
The undisputed background to the application is as
follows: The applicant instituted an action in 2003 against the
respondent
and three others in this court claiming payment of an
amount of money as damages. The applicant and the respondent are
cited
therein as the plaintiff and first defendant respectively. The
merits of the claim (the issues relating to the first respondent’s
liability to compensate the applicant) were finalised at an earlier
stage and the only issue remaining is, what is referred to
in the
application as the
quantum
of the claim. I assume it is
intended to refer to those issues that relate to damage and the
quantum
thereof.
The action was set down for trial on 15 August 2011.
The applicant was ready to proceed with the trial and all her
witnesses were
subpoenaed and available to testify. The applicant’s
legal representatives were informed by those representing the
respondent
that they had a mandate from the respondent to attempt to
negotiate a settlement of the claim. The parties as a consequence
entered
into settlement negotiations.
These negotiations culminated in the respondent’s
representatives proposing a settlement of all aspects of the
applicant’s
claims. The terms of the proposed settlement found
favour with the applicant. The parties were however not able to
conclude a
compromise (
transactio
) as the mandate of the
respondent’s representatives did not extend to them agreeing
to any settlement proposal. They first
had to obtain authorisation
from the respondent. According to the applicant the respondent’s
legal representatives indicated
that obtaining the necessary
authorisation should not present a problem. A memorandum was to be
prepared and submitted to the
respondent for approval. From the
respondent’s answering affidavit filed in the present
proceedings it would appear that
that was done.
As a result of the negotiations the trial did not
proceed on 15 August and stood down until the following day. The
next day the
matter was postponed by agreement between the parties
to 22 August 2011. The purpose of the postponement was to enable the
respondent’s
attorney to obtain the necessary approval for the
proposed settlement. The indication was that authorisation would be
received
by that date. Between 16 and 22 August the applicant’s
attorney directed a number of enquiries to the respondent’s
attorney asking about progress.
At the resumed hearing on 22 August the respondent’s
attorney indicated that he had not as yet received authorisation and
that the process was taking longer than anticipated. He however gave
an assurance that authorisation was imminent and that it
will be
obtained. The respondent’s representatives informed the
presiding judge that a further three weeks were required
for that
purpose. The matter was consequently postponed to 12 September.
Between 22 August and 12 September several written enquiries
were
once again addressed to the respondent’s attorney. As before,
most remained unanswered.
At the hearing on 12 September counsel for the
respondent informed the applicant’s attorney that they still
did not have
authority to settle the matter on the proposed terms.
As the presiding judge was no longer prepared to keep the matter on
the
trial roll, it was directed that a new trail date be obtained.
The matter was as a result postponed
sine die
. The registrar
subsequently allocated 11 June 2012 as a trial date. Despite fresh
assurances that the issue relating to authorisation
would be
finalised by the end of October 2011, nothing transpired.
In an attempt to ensure progress in the matter further
correspondence were directed to the respondent’s attorneys.
This
did not yield any results and the position at present,
according to the applicant is that there is no explanation for the
delay
in the respondent either granting or refusing approval for the
settlement proposal. The difficulty in which the plaintiff finds
herself is not knowing whether to prepare for trial on 11 June and
to incur further costs in once again securing the attendance
of her
witnesses and instructing counsel. As stated earlier, the action was
commenced in 2003 and the applicant finds the delay
in having the
matter brought to finality to be traumatising.
The respondent is opposing the relief claimed, placing
reliance on an affidavit deposed to by his attorney of record. The
basis
for the opposition to the relief claimed is that the
settlement negotiations simply resulted in a proposal and that until
such
time as it has been authorised by the respondent, the applicant
has no grounds to approach this court for any relief. Failing
authorisation, it is contended that the matter must proceed to
trial. In so far as the delay in obtaining authorisation is
concerned,
it is stated that it is the respondent’s
prerogative to be allowed sufficient time to investigate the issues
and come to
the correct decision. There is further a vague reference
to a change in senior staff in the respondent’s department.
How
this may have affected the granting of authorisation over the
last six months is not stated. There is no affidavit from the
respondent
or any other relevant official explaining why it is
taking so long to give consideration to the settlement proposal.
At the hearing of the matter argument centered around
the question whether the applicant has met the requirements for a
final
interdict. The submission advanced on behalf of the respondent
was to the effect that as the relief claimed is in the form of a
final interdict, it is consequently incumbent that the applicant
establishes a clear right. (For the requirements for the grant
of a
final interdict see Erasmus
Superior Court
Practice
at E8-6C to E8-6D.) Counsel for the
applicant submitted that the applicant has on the papers established
such a right. The nature
and content of this right is that due and
expeditious consideration will be given to the settlement proposal
and that such consideration
would be communicated to the applicant
expeditiously. This right, so it was argued, arises from the fact
that the settlement
proposal emanated from the respondent’s
legal representatives, that the applicant’s attorney was
informed that the
authorisation of the settlement offer would be
‘
a
formality’
upon the consideration by the
respondent of the memorandum prepared by his legal representatives,
and that the matter was postponement
in order for such authorisation
to be obtained.
The respondent’s submission in turn is that in
the absence of the proposed settlement having been approved by the
respondent,
there is no agreement in existence and nothing that
could be enforced. The undertaking given by the respondent’s
legal
representatives to recommend the settlement proposal to pursue
the matter, and to report back to the applicant does not constitute
an agreement and cannot establish a clear right for a final
interdict.
Counsel for the respondent is in my view correct that
in the absence of an agreement, whether it be an agreement to
consider a
settlement proposal within a fixed or reasonable time, or
an agreement amounting to a compromise, the applicant has failed to
establish a clear right (or put differently, a right clearly
established. See Erasmus
op cit
at
E8-6D.) Whether the applicant has a right that would entitle her to
a final interdict is a matter of substantive law. Substantive
law
defines legal rights, duties and remedies. Procedural or adjectival
law on the other hand deals with the proof and enforcement
of
rights, duties and remedies. (Herbstein & Van Winsen
Civil
Practice of the High Courts of South Africa
5
th
ed vol. 1 at page 3.) In
Universal
City Studies Inc. v Network Video
[1986] ZASCA 3
;
1986 (2)
SA 734
(A) at 754 J Corbett JA quoted the following passage in
Salmond
Jurisprudence
11
th
ed at page 503-504 in this regard: ‘
Substantive
law is concerned with the ends which the administration of justice
seeks; procedural law with the means and
instruments by which
those ends are to be attained
.’
A legal
right may in turn be defined as
‘
an interest
conferred by, and protected by the law, entitling one person to
claim that another person or persons either give him
something, or
do an act for him, or refrain from doing an act.’
(Hutchinson, Van Heerden, Visser & van der Merwe
Wille’s Principles of South African Law
8
th
ed
at page 38. See also Herbstein & Van Winsen
op
cit
.)
The applicant does not allege the existence of an
agreement in her papers. It is correct as stated by counsel for the
respondent
that the application is in essence founded on an
undertaking that the settlement proposal would be considered by the
respondent
and that there has been an undue delay in complying
therewith. An undertaking quite clearly falls short of the necessary
consensus
required for a binding agreement creating rights and
obligations that are enforceable. This is no doubt the reason why
counsel
for the applicant rather chose to place reliance on the
conduct of the respondent as establishing a clear right. It is not
clear
on what basis the conduct relied upon in this regard can in
law give rise to a legal right, and none was advanced. I accordingly
agree with counsel for the respondent that the remedy provided by
interdict proceedings is on the facts of the present matter
not
available to the applicant.
However, the basis for the relief claimed by the
applicant lies in my view elsewhere. Both parties proceeded from the
premise
that it is only available by way of interdict proceedings.
This remedy and its requirements are matters of substantive law.
(Herbstein
& Van Winsen
loc cit
.)
Although the dividing line between substantive and adjectival law is
at times not an easy one to draw, the issue raised in
the present
proceedings is in my view a matter of procedure rather than
substantive law. It is procedural because the relief
sought in its
effect seeks to facilitate the finalisation of the applicant’s
action as opposed to enforcing a right, which
is a matter of
substantive law. What the parties in the present matter has been
doing since August 2011 was to attempt to bring
their disputes to
finality by way of a settlement as opposed to litigation. To this
extent they requested, and was granted permission
by the court in
August and September 2011 to keep the matter on the trial roll. The
postponement of the trial on each occasion
was sanctioned by the
court no doubt so as to facilitate a settlement of the matter rather
than for the matter to go to trial.
This is in accordance with the
position in our law relating to compromise. ‘
There
is no law preventing the parties to legal proceedings from coming to
a voluntary compromise and settlement in regard to
their various
claims in a law suit. The law, in fact, rather favours a compromise
(
transactio
), or other agreement of this kind;
for
interest
reipublicae ut sit finis
litium
.’
(Per Kotze JA in
Schierhout v Minister of Justice
1925
AD 417
at 423. See also
MEC for Economic
Affairs, Environment and Tourism v Kruisenga
2008
(6) SA 264
(CKHC) at 284 C-D.)
To encourage and facilitate the settlement of
proceedings without a trial is therefore one of the functions of the
court in furthering
the overriding objective of dealing with cases
fairly and efficiently. In achieving this objective the court may,
as in the instant
matter, and as part of its inherent power to
regulate its own procedure, postpone or stay the proceedings in an
attempt at settlement
where the parties request it.
‘
There
is no doubt that the Supreme Court possesses an inherent reservoir
of power to regulate its procedures in the interests
of justice.’
(Per Corbett JA in the
Universal
Studios
case
supra
at
754 G. See also Herbstein &Van Winsen
op
cit
at page 50.) It must follow that where a
settlement process has been sanctioned by the court, it is in the
interests of justice
that it be brought to finality so as to ensure
certainty and prevent the parties from incurring unnecessary costs.
Further, in
order to prevent an abuse of this process the court may
come to the assistance of an aggrieved party. In this context
assistance
is not granted in terms of the rules of court but in the
exercise by the court of its inherent power to regulate its own
procedure.
Granting the intervention which the applicant seeks in
this matter will ensure progress thereby promoting efficiency in the
conduct
of the litigation by reducing time and cost. This, I may
add, is consistent with and would serve to promote the objective
sought
to be achieved by, what is referred to as
‘
caseflow
management’
. Case management involves the
employment of measures or techniques by a court with the aim of
controlling the progress of a case
so as to ensure the efficient and
prompt finalisation thereof (Steelman, Goerdt and McMillan
Caseflow
Management, The Heart of Court Management in the New Millennium
at
page xi
et seq
.) One
aspect of this concept must necessarily be to ensure that a case is
not unduly interrupted it its procedural progress.
The idea of
caseflow management is at present a matter that is receiving
attention in this division with the view of introducing
measures
thorough rules of practice aimed at ensuring that the court play a
more active role in the progress of cases in civil
proceedings.
Although this may prove to be a challenge, particularly by reason of
the fact that the conduct of civil litigation
in our law is
adversarial in nature in that the litigants themselves are in
control of the progress of a case the hope is expressed
that this
will come to fruition. I would however add this
caveat
though, as long as it does not lead to the creation of
another opportunity for those who are always at the ready to create
more
paperwork, thereby adding to costs in a system that is already
conducive thereto.
In the absence of an acceptable explanation it must be
concluded that the respondent had sufficient time since August to
date
(a period of more than six months) to give consideration to the
settlement proposal which he instructed his legal representatives
to
negotiate with the applicant. In the circumstances I find the delay
to be inordinately long so as to amount to an abuse of
the process
of this court which is prejudicial to the applicant in that she is
unable to properly prepare for trial at the resumed
hearing of the
matter in June of this year.
For these reasons I propose to issue the following
order:
(a) The first respondent is ordered to consider the
settlement proposal submitted to him by his legal representatives in
case no.
EL322/03 (ECD720/03), and to arrive at a decision to either
accept or reject the offer within fifteen (15) days from the date of
this order.
(b) That the first respondent advise the applicant in
writing of the outcome of his decision.
(c) That in the event of the first respondent failing to
comply with paragraphs (a) and (b) of this order, the applicant is
given
leave to apply on these papers, duly amplified and upon notice
to the first respondent’s attorneys, for an order striking
out
the first respondent’s defence to the applicant’s claims.
(d) That the first respondent pays the costs of this
application.
D. VAN ZYL
JUDGE OF THE HIGH COURT
Matter heard on : 21 February 2012
Judgment delivered on : 2 March 2012
Counsel for Applicant : Adv R.W.N. Brooks
Instructed by : Wylde & Runchman Inc.
1
st
Floor Motorland Building
Lower Oxford Street
EAST LONDON
Counsel for Respondents : Adv M. Simoyi
Instructed by : B. Nduli & Co.
18-20 Porter Street
Central
EAST LONDON